Good and Bad News on Civil Liberties this Week

AAI reported in May that U.S. District Judge Katherine Forrest in Manhattan had delivered a brave ruling on the indefinite detention provisions of the National Defense Authorization Act (NDAA). Her May ruling placed a temporary injunction on the enforcement of these provisions as she heard more evidence. This week, Judge Forrest dealt a severe blow to the practice of indefinite detention by deciding to make her injunction permanent.

The lawsuit was unique in that the plaintiffs — including Chris Hedges, Noam Chomsky, and Dan Ellsberg — have never been indefinitely detained. Instead, the plaintiffs alleged that they are already suffering considerable injury from the fear that they could be indefinitely detained under section 1021 of the NDAA. The plaintiffs argued that through this fear, the NDAA violates “their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution.”

In her opinion, Judge Forrest urged Congress to make the law more specific or consider whether it is needed at all, saying: "This Court rejects the Government's suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention."

The main issue that Judge Forrest took with the indefinite detention provisions in the NDAA was its lack of specificity about what constitutes “support” for terrorism. The judge said the government struggled to explain what the statute means and what and whose activities it was written to cover. Forrest wrote, "That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual's core liberties.” She questioned in her opinion whether a news article perceived as favorable to the Taliban and garnering support for the Taliban could be considered to have "substantially supported" the Taliban. She went on to ask, "Who will make such determinations? Will there be an office established to read articles, watch videos, and evaluate speeches in order to make judgments along a spectrum of where the support is 'modest' or 'substantial?'"

Forrest also attacked the federal government attorneys’ assertion that the right to a habeas challenge post-detention was sufficient protection against wrongful detention. She argued that if habeas petitions are the only way for those detained under the law to gain freedom – even U.S. citizens on U.S. soil – then "core Constitutional rights available in criminal matters would simply be eliminated."

Judge Forrest’s decision to make permanent her injunction on indefinite detention is an admirable and important step, but it is hardly the end of the line. Her decision is certain to set off a lengthy appeals process that could ultimately end in a Supreme Court challenge.

The Bad News: House Votes to Reauthorize Warrantless Wiretapping

The House of Representatives voted 301-118 on Wednesday to reauthorize the vast spying powers of the FISA Amendments Act (FAA) for another 5 years. The law, first enacted in ’08, amended the Foreign Intelligence Surveillance Act to allow for broad surveillance of American citizens’ telephone and electronic communications without any suspicion of wrongdoing.

The bill drew vocal bipartisan criticism from a small group of lawmakers, but by-and-large the FAA was simply rubber-stamped by Congress. The House floor debate on the bill revealed a disturbing level of ignorance among members of Congress about what they were authorizing. The most common refrain from FAA supporters was that the law only concerned surveillance targeting “foreigners in foreign lands,” meaning it could not affect the rights of Americans. Rep. Trey Gowdy (R-SC) claimed: "This bill has nothing to do with Americans on American soil” House Permanent Select Committee on Intelligence Chair Rep. Mike Rogers (R-MI) argued that the bill is for “targeting foreigners located outside of the United States, and not on Americans in the United States, or anywhere else in the world." House Judiciary Committee Chairman Lamar Smith (R-TX) went further to claim that "the government cannot reverse target individuals overseas in order to monitor those in the United States. That means the government cannot target a US person, simply by monitoring a non-US person that the US person is talking to."

All of these claims are false and are based on a misunderstanding of what the term “target” means in FISA. The “target” of a surveillance program under FAA is typically just the foreign group, such as Al Qaeda, that the government is seeking information about. The FISA court approves general procedures for surveillance, but it’s NSA agents who decide which particular phone lines and e-mail accounts will be wiretapped, and there is no explicit requirement that these particular phones and e-mail addresses be foreign, only the program‘s overall target.

Most ofCongress seems disinterested in learning basic facts about the spying powers they are authorizing. The handful of lawmakers who have tried to learn more about the parameters of the surveillance have been stonewalled by the administration. Senators Mark Udall (D-CO) and Ron Wyden (D-OR) have led the charge on this matter. They sent a letter to the National Security Agency asking how often the agency collects information on Americans while it's technically "targeting" foreign groups. The two Senators received an incredibly Kafkaesque response to their inquiry from the Inspector General of the Office of the Director of National Intelligence Charles McCullough, who said “an IG review of the sort suggested would itself violate the privacy of U.S. persons.” Put more simply, McCullough claimed that it would violate Americans’ privacy to divulge the extent to which Americans have been spied on.

Given the Obama Administration’s aversion to transparency on this subject, it is highly unlikely that the president will veto the reauthorization when it inevitably passes Congress. Warrantless wiretapping of American citizens will be allowed to continue for another five years unless the tide of public opinion turns significantly against the practice. Thus, it is as important as ever to let your member of Congress know that you are against violations of the 4th amendment under the FAA.